Australia: Competition and Consumer Law - Whats News -17 January 2017

In the media

O'Brien Real Estate Pty Ltd and Jerry Caleca - Enforceable undertaking
A Croydon estate agency will contribute $45,000 to the Victorian Consumer Law Fund, after acknowledging contraventions of Victorian consumer and property laws relating to property sales (making false or misleading representations about the sale price of a number of properties) (12 January 2017). More...

L&L Dardha Real Estate Pty Ltd (trading as Hocking Stuart Yarraville) - Enforceable undertaking
A Yarraville-based estate agency will contribute $45,000 to the Victorian Consumer Law Fund, after it acknowledged that the company contravened sections 18 and 30 of the Australian Consumer Law (Vic) and underquoting provisions of the Estate Agents Act 1980. (making false and misleading representations about the sale of property, knowing the vendors were not likely to sell the property for the advertised price) (12 January 2017). More...

Motorists should buy now to avoid petrol price spikes
ACCC Chairman Rod Sims has urged motorists to shop around now to find the best deal before price cycles push petrol prices higher. Along with the falling exchange rate, the OPEC agreements are the primary reason for increases in wholesale petrol prices over the past six weeks. The OPEC cartel, continues to cause Australian motorists to pay much more for petrol than they should (05 January 2017). More...

Consumer complaints to ACCC top 20,000 in 2016

Complaints about electronics and whitegoods accounted for more than a quarter of the 20,000-plus grievances shoppers submitted to the Australian Competition and Consumer Commission in 2016 (03 January 2017). More...

Valve to pay $3 million in penalties for misrepresenting gamers' consumer guarantee rights
On 23 December 2016 the Federal Court ordered Valve Corporation to pay penalties totalling $3 million for breaching the Australian Consumer Law. The Court held that the terms and conditions in the Steam subscriber agreements, and Steam's refund policies, included false or misleading representations about consumers' rights to obtain a refund for games if they were not of acceptable quality (03 January 2017). More...

ACCC closes tertiary admissions centres investigation
The ACCC has completed its inquiries into alleged anti-competitive conduct by tertiary admissions centres (TACs) and decided to discontinue its investigation. The ACCC commenced its investigation after the Australian National University (ANU) alleged that the Western Australian Tertiary Institutions Service Centre (TISC) and the South Australian Tertiary Admissions Centre (SATAC) had both, independently, refused to supply tertiary admission services to ANU (03 January 2017). More...

ACCC releases Statement of Issues on PMP-IPMG print merger
The ACCC 'has released a Statement of Issues expressing initial concerns about the proposed merger between print businesses PMP (ASX:PMP) and IPMG.' It has indicated that its 'preliminary view is that the merger may substantially lessen competition in the supply of heatset web offset printing, the main method for printing catalogues and magazines' (22 December 2016). (media release) More.... (merger register) More...

Harrison Telecommunications companies engaged in unconscionable conduct
The Federal Court found yesterday that corporations trading as SoleNet and Sure Telecom (the Harrison Companies) engaged in unconscionable conduct in connection with the supply of telecommunications services (21 December 2016). More...

Few and far between: Criminal cartel enforcement in Australia
Despite criminal cartel prosecutions being few and far between in Australia there has not been any sustained debate about the reasons for the ACCC's slow start to criminal cartel enforcement. Contrary to ACCC claims, the reasons for the paucity of criminal cartel prosecutions since 2009 has been due to three main factors (17 December 2016). More...

Mind the Gap
The Federal Court of Australia has found that Woolworths had not engaged in unconscionable conduct towards its suppliers. This case confirms that "unconscionability" has a legal meaning that is different to "unjustified", "unfair" or "unjust" (noting that the Court did not find that Mind the Gap was any of these things). It also confirms that an assessment of unconscionability can only be undertaken by considering all of the relevant circumstances (16 December 2016). More...

ACCC will not appeal Woolworths decision
The ACCC has announced it will not appeal the Federal Court's decision in the Woolworths case, in which it had alleged Woolworths engaged in unconscionable conduct in relation to its 'mind the gap' scheme (16 December 2016).

Nurofen fined $6m for misleading consumers with 'specific pain' range
Nurofen's fine for misleading consumers is raised from $1.7 million to $6 million after a successful appeal by the ACCC. Earlier this year, the ACCC won its case against pharmaceutical giant Reckitt Benckiser over the company's "specific pain" range. The Federal Court found the products were misleading because they all contained the same active ingredient and did the same thing (16 December 2016). More...

ACCC takes action against ABG Pages
The ACCC has instituted proceedings in the Federal Court against ABG Pages Pty Ltd and an individual, alleging misleading or deceptive conduct, false or misleading representations, undue harassment and systemic unconscionable conduct in its dealings with small businesses, who were actual or potential customers of its online business directory service (15 December 2016). More...

Federal Court imposes multi-million dollar penalties on ANZ and Macquarie Bank for attempted cartel conduct
The proposed penalties were accepted and in addition to cost orders, Justice Wigney imposed the following penalties: '$9 million against ANZ in respect of its admission that it engaged in ten instances of attempted cartel conduct in contravention of the Competition and Consumer Act 2010 (CCA); and $6 million against Macquarie in respect of its admission that it engaged in eight instances of attempted cartel conduct in contravention of the CCA' (14 December 2016). (ACCC media release) More...

High Court allows ACCC appeal in Flight Centre attempted price-fixing case
The ACCC has today won a High Court appeal in relation to Flight Centre's attempt to induce three international airlines to enter into price-fixing arrangements between 2005 and 2009 in relation to air fares offered online by the airlines that were cheaper than those offered by Flight Centre (14 December 2016). More...

In practice and courts, published reports

Have your say on the Australian Consumer Law
The ACL review is being undertaken to establish whether the law has been effective and how it can be improved to benefit traders and consumers, without imposing unnecessary red tape.
The Australian Consumer Law Review Interim Report is open and can be accessed at Formal submissions and comments closed on 9 December 2016 ahead of the final report in March 2017.

Senate Economics Committee receiving submissions on MMP bill
The Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 was referred to the Senate Economics Committee on 1 December 2016. The Committee called for submissions which closed on 9 January 2017. The Committee is due to report on 16 February 2017. More...


Crescent Funds Management (Aust) Ltd v Crescent Capital Partners Management Pty Limited [2017] FCAFC 2
TRADE PRACTICES – misleading and deceptive conduct claims under the Australian Securities and Investments Commission Act 2001 (Cth) – companies engaged in financial services industry – whether business names, domain names and business activities sufficiently similar to be confusing and causative of contravening conduct – distinction between classes of consumer – distinction between sophisticated investors and other investors – occupation of a common field of activity – appeal dismissed.
TRADE PRACTICES – orders for injunction with disclaimer – appropriateness of unqualified, permanent injunction – appropriate exercise of discretion – appeal dismissed. Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) ss 18, 29.

Australian Competition and Consumer Commission v Valve Corporation (No 7) [2016] FCA 1553
CONSUMER LAW – pecuniary penalties – concepts of "common sense", causation, and contribution – injunctions – disclosure and advertisement orders – non-party consumer redress orders – compliance program orders, Federal Court of Australia Act 1976 (Cth) ss 21, 43. Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) ss 18, 18(1), 29, 29(1)(m), 54, 64, 224, 224(1), 224(2), 224(3), 232, 232(1), 232(4), 239, 246, 246(2), 247, 259(3), 262(1), 263(4); Ch 4; Pt 3-2, Pt 5-2; Div 1.

Australian Competition and Consumer Commission v Harrison [2016] FCA 1543
CONSUMER LAW – unconscionable conduct in trade or commerce – where respondents provided telecommunications services to consumers – where respondents transferred customer contracts from one company to another without the customer's consent – where transferee company demanded payment of early termination fee if customer wanted to terminate contract – where transferee company referred matter to debt collection agency or lawyers if customer did not pay – whether system of conduct or pattern of behaviour – whether unconscionable conduct in all the circumstances – whether respondents used undue harassment or coercion – whether director was person "involved" in contraventions.

Australian Competition and Consumer Commission v Lifestyle Photographers Pty Ltd [2016] FCA 1538
CONSUMER LAW – sections 18, 21, 29(1), 48 of the Australian Consumer Law – misleading and deceptive conduct, unconscionable conduct, false or misleading representations about goods, failure to specify a single price for goods – proposed consent orders in relation to alleged contraventions – where no statement of agreed facts.
CONSUMER LAW – contravention of sections 18, 21, 29(1), 48 of the Australian Consumer Law – declarations, injunctions, consequential relief, pecuniary penalty and publication orders sought by the applicant – considerations relevant to the fixing of penalties.

Basetec Services Pty Ltd v Leighton Contractors Pty Ltd (No 6) [2016] FCA 1534
CONSUMER LAW – misleading and deceptive conduct – where applicant proceeded on the basis that the scope of works under the proposed contract was reflected entirely in the tender drawings issued – where respondent issued with revised and additional drawings by its principal before it enters into contract with applicant – whether failure to disclose revised and additional drawings to the applicant is misleading and deceptive conduct – where contract provided that further drawings may be issued and applicant told variations were possible.
CONSUMER LAW – relief sought – where applicant seeks an order varying contract so that a "cap" in the works contract would be removed and the applicant would be entitled to be compensated instead by reference to reasonable rates and prices – whether order sought would compensate applicant for loss and damage caused – whether order sought proportionate to loss or damage suffered – where applicant claims it would have not reduced tender price if it had known of variations – where applicant claims it did not seek or undertake other work at reasonable industry rates and prices because of respondent's conduct – Australian Consumer Law, ss 237, 243.
TORTS – inducing a breach of contract – where applicant claims to have entered a subcontract with a supplier – where respondent terminated contract with applicant and contracted directly with that supplier – consideration of elements of cause of action – whether there was a contract between applicant and supplier – whether respondent knew of that contract – whether respondent induced or procured a breach of that contract.
PRACTICE AND PROCEDURE – application to extend time to file evidence – where applicant seeks to rely on a more detailed expert report – where first expert report defective and failed to set out reasoning – where deficiencies in report and delay in application not the result of a deliberate tactic – where application would not result in extended adjournment – application allowed.
PRACTICE AND PROCEDURE – application to amend statement of claim in relation to misleading or deceptive conduct claim – where amendment would not cause embarrassment to respondent – application allowed.
PRACTICE AND PROCEDURE – application to amend statement of claim in relation to the claim in tort – where application made at conclusion of trial – where amendment would prejudice respondent – where proposed amendment could have been pursued before trial – application refused.
PRACTICE AND PROCEDURE – application to amend defence to withdraw admission – where admission inconsistent with evidence – application allowed. EVIDENCE – where applicant's witness produced schedules which show his estimates of employee labour hours – where schedules not admissible as a business record by reason of Evidence Act 1995 (Cth), s 69(3) – whether schedules admissible pursuant to Evidence Act 1995 (Cth), s 29(4).

Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Limited [2016] FCA 1516
In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court.
On a number of occasions during 2011, Australia and New Zealand Banking Group Limited and Macquarie Bank Limited, through the actions of traders employed by them in their Singapore offices, attempted to contravene s.44ZZRJ of the Competition and Consumer Act 2010 (Cth). A corporation contravenes that section if it makes a contract or arrangement, or arrives at an understanding and the contract, arrangement or understanding contains a cartel provision.
COMPETITION – contracts, arrangements or understandings containing cartel provisions – where two major Australian banks attempted to make arrangements involving the manipulation of a financial benchmark and thereby the fixing of the price of foreign exchange forward contracts – where the banks admitted that they attempted to contravene s 44ZZRJ of the Competition and Consumer Act 2010 (Cth) – pecuniary penalties under s 76 of the Competition and Consumer Act 2010 (Cth) – relevant principles – where the Australian Competition and Consumer Commission and the banks proposed agreed pecuniary penalties – relevant principles in determining whether agreed penalties should be accepted – Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46 applied.

Australian Competition and Consumer Commission v Flight Centre Travel Group Limited [2016] HCA 49
Appeal allowed. Trade practices – Restrictive trade practices – Substantially lessening competition – Price fixing – Where travel agent sold international airline tickets on behalf of airlines – Where travel agent attempted to induce airlines to agree not to discount price at which international airline tickets offered directly to customers – Whether travel agent acting as agent for airlines – Whether travel agent and airlines "in competition" notwithstanding travel agent supplied as agent for airlines – Trade Practices Act 1974 (Cth), ss 45(2)(a)(ii), 45(3), 45A.
Trade practices – Restrictive trade practices – Market definition – Relevance of "functional approach" to market definition. Trade Practices Act 1974 (Cth), ss 4E, 45, 45A.

Commonwealth Bank of Australia v Kojic [2016] FCAFC 186
CONSUMER LAW – whether corporation engaged in unconscionable conduct contrary to s.51AB or s.51AC of the Trade Practices Act 1974 (Cth) or Australian Securities and Investments Commission Act 2001 (Cth) – approach to the assessment of statutory proscriptions against unconscionable conduct – whether unconscionable conduct requires a "high degree of moral obloquy" – no unitary test for the application of a statutory proscription of unconscionability – officers and employees did not act unconscionably – corporation did not act unconscionably.
CONSUMER LAW – whether knowledge of officers and employees can be aggregated and attributed to a corporation for the purposes of finding unconscionable conduct by a corporation – where officers and employees did not individually act unconscionably – analysis of Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563 – knowledge of employees could not be aggregated to determine whether the corporation acted unconscionably. Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)).

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181
CONSUMER LAW – pecuniary penalty for infringement of Australian Consumer Law – appropriate approach to assessment and appellate review of civil penalty – relevance of mental state to pleadings and assessment of penalty – appropriate application of "course of conduct" principle – re-exercise of penalty discretion. CONSUMER LAW – pecuniary penalty for infringement of Australian Consumer Law – whether primary judge erred in assessing loss or damage suffered by consumers as a result of contravening conduct – whether primary judge erred in assessment of causation – whether primary judge erred in assessing types of harm suffered – whether penalty manifestly inadequate. Australian Consumer Law (Competition and Consumer Act 2010 (Cth) Sch 2) ss.18, 29, 33, 224, 228.

APS Satellite Pty Ltd (formerly known as "SkyMesh Pty Ltd") v Ipstar Australia Pty Ltd [2016] NSWSC 1898
TRADE PRACTICES- Statute-Plaintiff sought recovery from the Defendant pursuant to s.74B, s.74D, and s.74H of the Trade Practices Act and s.54, s.55 and s.274 of the Australian Consumer Law of the cost of service calls and replacement parts for a satellite kit imported by the defendant - equipment said to be not reasonably fit for purpose, not of merchantable quality, not of acceptable quality. HELD: Plaintiff established that almost all of the subject items were not functioning for reasons inherent with the equipment and were therefore not fit for purpose, not of merchantable quality, not of acceptable quality; issue of high failure rate of equipment discussed; TRADE PRACTICES-Statute- Where Plaintiff claimed it was forced by reason of the defective equipment imported by defendant to engage additional support staff to deal with the high number of complaints that resulted from the defective goods resulting in a loss of money spent on wages HELD: The factual basis for the claim not established; also the indemnity provided for by s.74H is for cost or damage suffered by the consumer for which the intermediate seller has compensated the consumer and not the costs of the intermediate seller itself. Plaintiff's claim rejected. TRADE PRACTICES- Statute -Unconscionable conduct of supplier to internet service provider- Plaintiff claims that a price increase imposed on it by defendant, a satellite service provider, involved unconscionable conduct on the part of the defendant in breach of s.21 and s.22 of the Australian Consumer Law HELD: The Defendant had engaged in unconscionable conduct principally by requiring the Plaintiff to pay to it an amount equivalent to the defendant's assessment of what it would cost to meet the statutory indemnity imposed by s.74H and s.274 ACL, as a result of claims made by the Plaintiff on the defendant for defective goods.

Bert & Ors v Red 5 Limited & Anor [2016] QSC 302
CORPORATIONS – FINANCIAL SERVICES AND MARKETS – MARKET MISCONDUCT AND OTHER PROHIBITED CONDUCT – MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT – where the first defendant, a mining company, developed a gold mine in the Philippines – where the company sought to raise capital, for working capital and exploration purposes, through a private placement of shares – where the plaintiffs claim the company's chairman, the second defendant, represented to the first plaintiff in a telephone conversation that the purpose of the capital raise was to fund copper exploration – where the plaintiffs were unable to participate in the private placement – where the company's intentions for the use of the capital being raised changed before the market reopened – where the company disclosed that change of intention to the market before it reopened – where the plaintiffs purchased a large number of shares in the company after the market reopened – where the price of those shares subsequently fell – whether the second defendant made the alleged oral representations – whether the defendant's conduct was misleading – whether any misleading conduct caused the plaintiffs' loss.
CORPORATIONS – FINANCIAL SERVICES AND MARKETS – DISCLOSURE – where a mining company planned to re-open an open-pit gold mine which was covered by a lake – where the company developed a plan to dewater the lake and to continually dewater the pit over the life of the mine – where, after the lake had been almost completely dewatered, higher than estimated groundwater inflow was encountered – where the dewatering system was still capable of dewatering the groundwater inflow and rainfall – where the plaintiffs claim that if they had been told about the significant quantities of groundwater inflow, they would have sold their shareholding in the company and would not have purchased further shares – where the price of the company's shares subsequently fell – whether the company was required, under its continuous disclosure obligations in the Corporations Act 2001 (Cth) and the ASX Listing Rules, to disclose to the market that there were significant quantities of groundwater inflow into the mine – whether the company's failure to disclose that information caused the plaintiffs' loss.
CORPORATIONS – FINANCIAL SERVICES AND MARKETS – MARKET MISCONDUCT AND OTHER PROHIBITED CONDUCT – MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT – where a mining company planned to re-open an open-pit gold mine which was covered by a lake – where the company developed a plan to dewater the lake and to continually dewater the pit over the life of the mine – where, after 99 per cent of the lake was removed, the company disclosed to the market that dewatering was "complete" – where the company had previously disclosed that dewatering was a two stage process, comprising the initial dewatering and then continuing dewatering of groundwater and rainfall entering the pit – whether the company's conduct was misleading or deceptive – whether any misleading conduct by the company caused the plaintiffs' loss.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Ian Robertson
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